(a) Rape:
(b) Sexual Assault:
2024 (October Term) United States v. Mendoza, 85 M.J. 213 (Article 120(b)(2)(A), UCMJ criminalizes the performance of a sexual act upon a victim who is capable of consenting but did not consent, and Article 120(b)(3)(A), UCMJ criminalizes the performance of a sexual act upon a victim who is incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance when the victim's condition is known or reasonably should be known by the accused). (to achieve a conviction under Article 120(b)(3)(A), UCMJ, the government must prove not only that the victim was incapable of consenting but also that the victim's condition was known or reasonably should have been known by the accused; because Article 120(b)(2)(A), UCMJ, only requires that the sexual act be performed "without the consent" of the victim (regardless whether the accused knew or should have known of that condition), if the government could establish the absence of consent by proving that the victim was incapable of consenting, then the government could obtain an incapable-of-consent conviction under Article 120(b)(2)(A), UCMJ, without proving the accused's mens rea beyond a reasonable doubt, thus relegating Article 120(b)(3)(A), UCMJ, to mere surplusage without any purpose or effect). (Article 120(b)(2)(A), UCMJ, and Article 120(b)(3)(A) establish separate theories of criminal liability, and the government cannot prove sexual assault "without the consent" of the victim by establishing that the victim was incapable of consenting). (nothing prevents the government from charging an accused with both Article 120(b)(2)(A), UCMJ, and Article 120(b)(3)(A), UCMJ, offenses under inconsistent factual theories and allowing the trier of fact to determine whether the victim was capable or incapable of consenting; but what the government cannot do is charge one offense under one factual theory and then argue a different offense and a different factual theory at trial; doing so robs the accused of his constitutional right to know what offense and under what legal theory he will be tried and convicted). (in this case, where (1) the government elected not to charge appellant with sexual assault under Article 120(b)(3)(A), UCMJ (a sexual act upon a person incapable of consenting), and instead charged Appellant with sexual assault under Article 120(b)(2)(A), UCMJ (a sexual act upon a person capable of consenting who did not consent), but (2) at trial presented significant evidence of the victim's extreme intoxication and argued that the victim's inability to consent established the absence of consent, the government's approach -- which conflated two different and inconsistent theories of criminal liability -- raised significant due process concerns). (in this case, the military judge may have convicted sppellant of sexual assault on the theory that the victim was incapable of consenting without the government proving that Appellant knew or should have known that she was incapable, and this possibility raises serious due process concerns). (in cases involving sex offenses, the government is free to meet its burden of proof with circumstantial evidence; accordingly, a conviction for engaging in a sexual act upon a person capable of consenting who did not consent may be based on circumstantial evidence alone). (the fact that Article 120(b)(2)(A), UCMJ (a sexual act upon a person capable of consenting who did not consent) and Article 120(b)(3)(A), UCMJ (a sexual act upon a person incapable of consenting) create separate theories of liability, that does not bar the trier of fact from considering evidence of the victim's intoxication when determining whether the victim consented; nothing in Article 120(b)(2)(A), UCMJ, bars the government from offering evidence of an alleged victim's intoxication to prove the absence of consent; conversely, nothing bars the defense from offering the same evidence to sow reasonable doubt; but what the government cannot do is prove the absence of consent under Article 120(b)(2)(A), UCMJ, by merely establishing that the victim was too intoxicated to consent). 2023 (October Term) United States v. Wilson, 84 M.J. 383 (to the extent that United States v. Morrison, 52 MJ 117 (CAAF 1999), may be viewed as standing for the proposition that (a) intent is not "in issue" in those sexual assault cases where the underlying conduct, standing alone, is overtly sexual in nature, and (b) under such circumstances "intent evidence" automatically fails to survive a MRE 403 analysis or to meet the second prong of the three prong MRE 404(b) evidentiary test, that conclusion is not supported by CAAF's other case law; in a series of precedents over the years, CAAF has held that intent is always at issue in a criminal case—even when the defense chooses not to contest it).
2022 (October Term) United States v. Smith, 83 M.J. 350 (the evidence for appellant’s conviction for sexual assault by oral penetration was legally sufficient where the government introduced ample evidence for a rational trier of fact to find beyond a reasonable doubt that appellant committed a sexual act upon the victim when she was incapable of consenting due to impairment by intoxication, and appellant knew or reasonably should have known of the impairment). (incapable of consenting to a sexual act means lacking the cognitive ability to appreciate the sexual conduct in question or lacking the mental or physical ability to make or communicate a decision about whether the alleged victim agrees to the conduct). (intoxication, standing alone, does not indicate one is sufficiently impaired to be incapable of consenting to sexual activity). (c) Aggravated Sexual Contact:
(d) Abusive Sexual Contact: